Item 13-I Maintenance of Landscaping and Buffers (TC)
LAND DEVELOPMENT ORDINANCE - TEXT AMENDMENTS – Round 13
Item # 13I MAINTENANCE OF LANDSCAPING AND BUFFERS
Town Council Meeting – January 14, 2010
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BACKGROUND |
Currently, the property owner is responsible for maintaining the vegetation in required buffers and replacing damaged vegetation. Unapproved disturbance of, removal of, or damage to the existing vegetation results in assessment of fines to the property owner, and a requirement to revegetate the disturbed areas
If the proposed amendment is approved, the person or entity responsible for any disturbance or damage to a buffer would also be held responsible for unapproved disturbance of vegetation and be subject to fines and revegetation requirements. In addition, the proposed amendment specifically addresses application and disclosure requirements and applicability within Thoroughfare Overlay District.
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PROCESS AND ACTIONS TO DATE |
Town Council Public Hearing
The Town Council public hearing was held on October 22, 2009. There were no citizen comments.
Concerns related to disturbance of buffers were raised by the Town Council in a separate agenda item at the October 22 Town Council meeting. Mr. Portman stated that the proposed amendment came about as a result of the recent Cameron Pond buffer area, and captured most of the specific concerns listed below:
· HOA responsibility for damage caused while in development.
Staff Comment: See 7.2.13(C) and 4.4.4(D) – entity or person responsible for damage is subject to enforcement actions.
· Utility easement notification and site plan requirement.
Staff Comment: See 3.9.2(B)(1)-.disclosure of existing or known potential easements required with site/subdivision plan submittal.
· Eliminate $40,000 cap on tree cutting fines.
Staff Comment: See 7.2.13 (C)(1)(a).- maximum fine eliminated.
· Hold applicant responsible for damages.
Staff Comment: See 7.2.13(C) and 4.4.4(D) – entity or person responsible for damage is subject to enforcement actions.
· Require certification statement at time of application that neither the applicant nor any of the land owners have been notified of any plans contrary to the application.
Staff Comment: See 3.9.2(B)(1) - disclosure of existing or known potential easements required with site/subdivision plan submittal.
· Require immediate notification of the town if and when any notification occurs. Disclosure and any existing or known potential easements will be required at the time of site/subdivision plan application.
Staff Comment: An updated disclosure statement could be required prior to approval of the construction drawing to identify. In addition, the surveyor is responsible for including all existing easements on the final plat, including any easements that may have been granted after the initial subdivision application but before approval of the final plat. After considering the development review and approval process, staff has not identified any other points at which certification or disclosure by the applicant and/or property owner concerning the potential for new easements could be incorporated in a meaningful and effective manner.
· Add clear cutting restrictions to subdivisions, now just covers non subdivision areas.
Staff Comment: The clearcutting provisions of the NC General Statutes provide some pre-development clearing restrictions for a depth of 50 feet adjacent to public roadways and developed properties, and 25 feet adjacent to undeveloped properties. After the site/subdivision plan is approved, disturbance of required buffers is restricted per LDO section 7.2.13.
· Add penalty for fraud.
Staff Comment: See 3.9.2(B)(1) – providing inaccurate or in complete information would be a violation of the LDO and the applicant would be subject to fines and penalties.
Planning and Zoning Board Work Session
There were questions and discussion as to whether or not the proposed amendment would have prevented clearing of the utility easement at Cameron Pond Staff responded that the goal of the amendment is to prevent such occurrences in the future to the extent possible. Several Board members indicated support for removal of the existing $40,000 cap on fines. Staff clarified that the $40,000 fine was in addition to the cost of revegetating the disturbed area.
Changes Since Planning and Zoning Board Work Session
Section 7.2.13(C)(1)(a) was revised to remove the base fine cap of $40,000.
Section 3.9.29B)(1) was revised to clarify that owner is responsible for disclosure of information regarding existing or potential easements.
Staff Recommendation
Staff recommends approval of the proposed amendment.
Planning and Zoning Board Meeting and Recommendation
On December 21, 2009, the Planning and Zoning Board recommended approval of the proposed amendment by a vote of 7-0.
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PROPOSED AMENDMENT |
CHAPTER 7 DEVELOPMENT AND DESIGN STANDARDS
7.2 Landscaping, Buffering, Screening and Tree Protection
7.2.13 Maintenance Responsibility, Replacement of Damaged Vegetation, and Associated Fines
(A) Maintenance Responsibility
The owners of the property, and which term includes their agents, heirs, or and assigns, shall be responsible for the installation, preservation, and maintenance of all planting and physical features (installed or vegetated natural areas) required under this section, Section 4.4.4, Thoroughfare Overlay, Section 4.4.6, Watershed Protection Overlay, or Section 7.2.14. Damage to these areas shall result in revegetation requirements and fines (see paragraphs (B), (C) and (D) below) or other penalties as required under this Ordinance.
(1) Any dead, unhealthy, or missing vegetation, or vegetation disfigured by severe or excessive pruning, shall be replaced with locally adapted vegetation that conforms to the standards of this Ordinance and the approved site and/or subdivision plan. In the case of removal of existing original vegetation from required vegetation protection areas, the replacement requirements of paragraphs (B) and (C) below shall apply.
(2) In the event that any vegetation or physical element functioning to meet the standards of this Ordinance is severely damaged due to an unusual weather occurrence or natural catastrophe, or other natural occurrence such as damage by wild or domestic animals, the owner may be required to replant if the buffer standards are not being met. The owner shall have one (1) growing season to replace or replant after reconstruction is complete. The Planning Director shall consider the type and location of the landscape buffer or required vegetation area as well as the propensity for natural revegetation in making a determination on the extent of replanting requirements.
(3) Any appeals of the Planning Director's decision relating to the amount of required revegetation shall be made to the Town Council within ten (10) days following the notice of decision, and the Town Council shall consider reduction requests at the next available regular meeting.
(4) All required buffers, streetscapes, vehicular use areas, and other landscaped areas shall be free of refuse and debris, shall be treated for pest/diseases in accordance with the approved site and/or subdivision plan, and shall be maintained so as to prevent mulch, straw, dirt, or other materials from washing onto streets and sidewalks.
(5) The owner should take actions to protect trees and landscaping from unnecessary damage during all facility and site maintenance operations. Plants must be maintained in a way that does not obstruct sight distances at roadway and drive intersections, obstruct traffic signs or devices, and/or interfere with the use of sidewalks or pedestrian trails (see Community Appearance Manual). Viable plants, whether located within undisturbed buffers, vegetation protection areas, or within planted areas (required by the site and/or subdivision plan) shall not be removed, damaged, cut or severely pruned so that their natural form is impaired (shrubs within existing vehicle use areas, streetscapes, and street fronts may be pruned, but must maintain at least three (3) feet in height).
(6) In the event that existing required vegetation located within any required buffers, streetscapes, vehicular use or other landscape areas poses an immediate or imminent threat to improved structures on private or public property, severe pruning and/or removal of the vegetation is allowable provided prior approval from the Planning Director is obtained, and the performance standard of the landscape area is maintained consistent with this Ordinance.
(7) Unapproved removal of vegetation and/or severe or excessive pruning in non-emergency situations will result in the assessment of fines or penalties consistent with Section 7.2.13(C) and Section 7.2.13(D) below.
(B) Replacement of Disturbed and Damaged Vegetation
The disturbance or damage of vegetation within any required buffers, streetscapes, vehicular use areas, or other landscape areas required by this Ordinance, or by zoning condition, shall constitute a violation of this Ordinance.
(1) The natural death of existing vegetation within any required landscape area does not constitute a violation and would not require revegetation to replace the plant material unless the required landscape area no longer achieves the required performance standards of this Ordinance.
(2) All disturbed or damaged landscaped areas and natural vegetation shall be replanted so as to meet the standards of this Ordinance, as well as the approved site and/or subdivision plans, if applicable. A replacement planting plan shall be submitted for review and approval by the Town prior to replacement. This plan will ensure proper replacements are made.
(3) In situations where existing required vegetation on a developed site or vacant site with an approved site and/or subdivision plan has been removed or damaged in violation of this Ordinance, the Planning Director may require that the entire site be reviewed and revegetated consistent with the current provisions of this Ordinance, in addition to any applicable fines.
(4) In situations where existing vegetation is in poor health or has died as a result of neglect or of poor maintenance practices, a landscape maintenance plan shall be provided for the site in accordance with subsection (E) below in order to remedy the violation. In cases where there is an existing landscape maintenance plan, such plan shall be reviewed and modified as necessary to address specific issues that may have created the violation. In addition, the responsible party shall provide such documentation as is available (e.g. invoices, contracts, etc.) to provide proof that the landscape maintenance plan shall be implemented as approved.
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PRINCIPLES OF INTERPRETATION |
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The natural death of existing required vegetation that is six (6) inches in dbh or greater is to be replaced using the requirements of Section 7.2.13(C)(2), or "inch for inch" standards. The removal of any required vegetation must be approved by the Planning Director PRIOR to its removal to avoid fines associated with buffer disturbance |
C) Fines and Replacement of Existing, Original, or Installed Vegetation
Where the vegetation that has been disturbed or damaged existed on the site prior to the time of approval of a Tree Clearing Certificate, or the time a site and/or subdivision plan was approved or was installed at a later date, the owner and/or any person responsible for the disturbance or damage to vegetation shall be fined and shall replace the disturbed or damaged vegetation in accordance with the standards set forth as listed below or as required in other parts of this Ordinance, taking into account any unique site conditions and significant vegetation remaining within the landscaped area. Perimeter buffers within private property boundaries shall be planted and/or installed to a Type "B" buffer standard. This section shall also apply to all Urban Transition Buffers, required vegetation protection areas, and vacant, undeveloped properties that due to zoning conditions and/or requirements of this Ordinance have protective vegetated areas (including but not limited to vegetation in the Thoroughfare Corridor Buffer. If the developer caused or is responsible for such disturbance of the buffer, and the developer is not the owner of the buffer, then the developer shall also be responsible for the consequences of such disturbance. For purposes of this section 7.2.13, "disturbance" shall be defined as any action that results in injury or harm to required trees, shrubbery, or other vegetation.
(1) Where the size (caliper, height, spread) and quantity of damaged vegetation can be documented, an equal amount of new vegetation ("inch for inch") shall be used to quantify the replacement vegetation. Replacement vegetation shall meet or exceed the current requirements of this section. Fines and replacement shall consist of item (a) and any combination of the measures listed in paragraphs (b) and (c).
(a) An initial fine of $1,000 shall be imposed for any unauthorized disturbance within the boundaries of the tree protection areas. This disturbance includes but is not limited to: parking or intrusion of equipment or vehicles; storage of any materials, and any unauthorized damage and/or removal of vegetation. In addition to the initial fine, a base fine of between $2.00 and $4.00 for every square foot area used by the damaged vegetation within any areas required to be protected under this Ordinance shall be imposed. The areas covered under this section include but are not limited to: vegetation protection areas, Urban Transition Buffer zones on undeveloped sites, buffers, streetscapes, vehicular use areas, and other landscape areas on developed sites. The base fine shall not exceed a total of $40,000.00 per site. In determining the amount of the fine, the Planning Director shall consider the degree and extent of harm caused by the violation, the cost of rectifying the damage, and whether the violation was committed willfully. Payment of fines shall be made to the Town at a time deemed appropriate by the Planning Director.
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PRINCIPLES OF INTERPRETATION |
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Most or all upper-story and understory trees (i.e., Crape Myrtle) used on-site are intended to grow naturally and not be excessively pruned. These trees should be pruned so as to promote the natural growth of the tree as was intended to meet any streetscape and buffer requirements. However, some pruning is allowed to remove limbs in order to allow visibility on non-residential properties in accordance with Section 7.2.4, Streetscape and Streetfront Landscaping. |
(b) Inch for Inch Replacement
Any tree with a dbh of at least six (6) inches that is damaged or removed shall be replaced with one (1) or more trees that have a caliper of at least two (2) inches and a cumulative dbh equal to or greater than the original tree.
(c) Area Replacement
Where existing vegetation is damaged or removed, the type and amount of replacement vegetation shall be as required below to re-establish the natural landscape or natural buffers identified on the landscape plan or as required by this Ordinance. In such instances, the following plantings shall be installed for each two thousand (2,000) square feet of disturbed area:
(1) Two (2) upper-story trees of at least two (2) inches caliper and approximately eight (8) feet tall;
(2) Two (2) native ornamental trees of at least one and one-half (1 ½) inches caliper and at least seven (7) feet high above ground level at the time of installation;
(3) Two (2) evergreen trees of at least two (2) inches caliper and at least eight (8) feet high above ground level at the time of installation;
(4) Seven (7) evergreen shrubs of at least eighteen (18) inches in height at the time of installation (typically three (3) gallon-container size);
(5) Eight (8) deciduous shrubs of at least eighteen (18) inches in height and three (3) gallon container size at the time of installation;
(6) On slopes equal to or greater than a ratio of two and one-half to one (2.5:1), twenty-two (22) ground cover plants with a container size of one (1) gallon at the time of installation.
The specific quantities of plants listed above may be adjusted by the Planning Director in order to meet the standards for the required buffer type based on location, topography and other site features.
(D) Fines and Replacement for Severe or Excessive Pruning of Required Plant Material.
All upper-story and understory trees (i.e., Crape Myrtle) used on-site are intended to grow naturally and not be excessively pruned. Such trees shall only be pruned so as to promote the natural growth of the tree as was intended to meet any streetscape and buffer requirements. In some cases, pruning may take place to prevent damage to utilities, to address sight distance requirements, or to prevent damage to buildings. Therefore, upon approval by the Planning Department, some pruning may be allowed to remove limbs to allow visibility on non-residential properties in accordance with Section 7.2.4, Streetscape Landscaping. Required shrubs on sites shall be maintained according to the approved site plan and the specific landscape requirements mentioned in this ordinance. When plant material is deemed to have been severely or excessively pruned:
(1) The first time a violation is cited, the plants will be evaluated to determine the extent of the damage. In addition, the site will be reviewed to determine if it meets the approved site plan requirements. A recommendation will be made by the planning staff to the property owner and/or any person responsible for the severe or excessive pruning to either replace the damaged plant material or supplement the plant material on the site.
(2) If a second violation is cited, the property owner and/or any person responsible for the severe or excessive pruning will be assessed a $100 per shrub or $100 per caliper inch for trees for any severe or excessive pruning. The owner and/or any person responsible for the severe or excessive pruning shall also be subject to replacing any severely or excessively pruned plant material on a site using the "inch for inch" or "area replacement" standards or supplementing the plant material on the site to meet current ordinance landscape requirements.
(3) If any additional violations are cited, a base fine of $1,000 will be assessed in addition to the $100 per shrub or $100 per caliper inch for trees for any severe or excessive pruning. The property owner and/or any person responsible for the severe or excessive pruning will also be responsible for the replacement of plant material using the "inch for inch" or "area replacement" standards or supplementing the plant material on the site to meet current ordinance landscape requirements.
(E) Landscape Maintenance Plan
The statement below regarding a landscape maintenance/ management plan shall be placed on the landscape sheet prior to plan approval along with any other specific details applicable to site landscaping. This statement must be individualized based on each site and/or subdivision plan. This should be done by a certified landscape architect.
"The owners of the property, and which term includes their agents, heirs, or and assigns, shall be responsible for the installation, preservation, and maintenance of all planting and physical features shown on this plan. The owners shall be responsible for maintenance of the vegetation, including but not limited to:
1. Fertilization (optional)
2. Pruning within limits (applicant must define the limits)
3. Pest control
4. Mulching
5. Mowing (if any)
6. Protection of the root zones from equipment, construction and related materials, etc.
7. Watering schedule for irrigation system
8. Other continuing maintenance operations
Failure to maintain all plantings in accordance with this plan may constitute a violation of the Land Development Ordinance and may result in fines.
4.4.4 Thoroughfare Overlay
(A) Purpose and Intent
The purpose of the Thoroughfare Overlay is to provide orderly development along controlled/limited access highways, to encourage the most appropriate use of adjacent lands, to maintain the scenic natural beauty of the area visible from the controlled/limited access highway and from lands adjacent to the overlay, to provide open space and a natural buffer for sound, and to promote the safe and efficient movement of traffic. These thoroughfares commonly establish an image of the quality of life in the Town for visitors and residents alike. Preservation of this natural beauty is required to enhance trade, capital investment, tourism, and the general welfare. All development within this overlay district shall comply with the regulations of this Section.
(B) Location of District
The Thoroughfare Overlay is established along both sides of existing and planned controlled/limited access highways within the Town's jurisdiction and Extraterritorial Jurisdiction Area, as indicated on the Zoning Map and/or Comprehensive Transportation Plan Thoroughfare Plan Maps. Such highways include, but are not limited to, US 1, US 64, I-40, Cary Town Boulevard (between I-40 and NE Maynard Road), and the Western Wake Expressway. The Thoroughfare Overlay covers all lands within one hundred (100) feet of the right-of-way along both sides of each controlled-access highway, except at interchanges, where the overlay district shall extend back to the established point of the intersecting roadway where the controlled access ends or begins (see Section 4.4.4(D) below).
(C) Plan Approval Required
All development within the Thoroughfare Overlay shall require submission of a subdivision plan or site plan in accordance with Section 3.9 of this Ordinance, and approval of such plan by the appropriate decision-making body.
(D) Buffer Requirement
(1) General Requirement
A buffer strip, with a width extending one hundred (100) feet from and parallel to the right-of-way boundary of the controlled-access highway, shall be maintained on all property within the Thoroughfare Overlay.
(2) Interchange Requirements
A buffer strip width extending fifty (50) feet from and parallel to the right of way for interchange ramps shall be maintained on all property within the Thoroughfare Overlay.
(3) Reductions
The Town Council may reduce the required width of this buffer strip as part of its approval of the site and/or subdivision plan, taking into consideration: the topography of the area; surrounding land uses, particularly residential uses; the actual location of the corridor controlled/limited access highway; the size and shape of land parcels affected by the buffer; and whether the buffer requirement would render the entire property unusable. In reducing the width of the buffer strip, the Town Council shall ensure that the applicant and/or developer will provide appropriate landscaping meeting the requirements of Section 4.4.4(D)(4) below. In no event, however, shall the Town Council reduce the required width of the buffer strip to less than thirty (30) feet. See Section 3.19, Minor Modifications.
(4) Maintenance of Existing Vegetation
Within the required buffer strip, all existing vegetation shall be maintained in a natural, undisturbed state and, unless the existing natural vegetation provides such a buffer, the applicant and/or developer shall install and maintain an Opaque Type A buffer meeting the requirements of Section 7.2.3(D) and (G) of this Ordinance. The owners of the property are responsible for maintenance of the buffer and the consequences resulting from damage disturbance to the buffer in accordance with Section 7.2.13, Maintenance Responsibility, Replacement of Damaged Vegetation, and Associated Fines. If the developer caused or is responsible for such disturbance of the buffer, and the developer is not the owner of the buffer, then the developer shall also be responsible for the consequences of such disturbance in accordance with Section 7.2.13.
(5) Development within Buffer
No development shall be allowed within the required buffer strip except as provided for herein. However, tThe decision-making body may, in approving the a site and/or subdivision plan for the property, permit the construction of streets, including greenways, or utilities easements through the buffer strip upon finding that such construction is necessary for safe ingress, egress, or utility service to the site. If streets or utilities are placed in the required buffer strip, they shall be located and installed in a way that minimizes disturbance of the buffer area (not parallel but perpendicular or not less than at a 75 degree angle). If streets, utilities, stormwater drainage channels or piping, or other similar features are placed or are already located in the required buffer strip in any way other than perpendicular or not less than at a 75 degree angle, the area making up the street or utility easement or area shall be replaced with an equal amount of buffer area preferably on the site adjacent to the disturbed area. The nature and limits of such construction or disturbance shall be designated on the approved site and/or subdivision plan.
(6) Enforcement
Disturbance of buffers required under this section shall constitute a violation of this Ordinance and shall be subject to appropriate penalties and remedies set forth in Chapter 11. For purposes of this section, "disturbance" shall be defined as any action that causes or allows development in the buffer, reduces the size of the buffer or results in injury or harm to required trees, shrubbery, or other vegetation.
(E) Variances
No variance shall be granted that modifies the width of the buffer, or the amount or type of vegetation required under this Section, but the Town Council may grant modifications to these requirements in some circumstances (see paragraph (D)(2) above).
3.9.2 Common Procedures for Review and Approval of Subdivisions and Site Plans
(A) Pre-Application Conference Required…
(B) Application Materials
All subdivision and site plan applications shall include a set of application materials prepared pursuant to this section. Approval of these materials shall be a prerequisite to the review and approval procedures set forth in this section.
(1) General Application Requirements
Applications shall be filed with the Planning Department and shall consist of maps or plans that show the proposed development layout and related information and drawings, as specified by the Planning Director and prepared to the specifications of the Planning Director. All proposed or existing rights of way, easements, restrictive covenants or other matters of record that are known or should reasonably be known by the property owner(s) and that may affect the property shall be disclosed. Data provided shall be accurate. Submission of an application containing inaccurate, misleading, or false information, including but not limited to Incorrect incorrect measurement or mathematical results, or submission of an application that omits required information, shall be grounds for rejection or refusal to act on the application and shall constitute a violation of this Ordinance and be subject to appropriate penalties and remedies set forth in Chapter 11.
(a) The application shall provide a statement identifying any and all modifications from the design standards or improvement requirements set forth in Chapters 7 and 8 that the applicant will be requesting, including requests for Minor Modifications (see Section 3.19) or Variances (see Section 3.20).
(b) The application shall also be accompanied by other applications, if appropriate, such as a Special Use application (Section 3.8) and/or a voluntary annexation petition.
(c) Any applicant desiring to make a payment of money in lieu of land dedication pursuant to Section 8.2.4 of this Ordinance shall attach a letter to the plan application requesting approval to make payment in lieu of dedication of land.
(d) During review of the application, the Planning Department, the Development Review Committee, the Planning and Zoning Board, and/or the Town Council may require such additional information as may be necessary to review the submission, if applicable.
(e) No application for a site or subdivision plan shall be accepted until the draft findings of the TIA have been received unless the Development Review Committee agrees in advance that the draft findings may be submitted within a week after the date of the subdivision and site plan application.
